Who maintains Common Property?

A modern loft courtyard with tables and chairs, barbecue area. New apartment house. Northwest, USA

Common property comprises of the areas within a strata plan that fall outside of individual lots.

Some of these areas could be common driveways, common roofs, and common gardens.

Legislation requires that the Body Corporate or Owners Corporation obtain cover for common property under the strata insurance policy.

The responsibility to maintain common areas falls on a range of varying parties that are part of the body corporate and also external to the body corporate.

Depending on your complex and what it comprises, you may engage in the service several individuals to help in maintenance.

Building Manager:

One would be a Building Manager (otherwise known as an onsite manager or caretaker), who is usually located on-site and works under the direction of the body corporate to ensure the smooth day-to-day running of the strata scheme. Some of their duties may include cleaning, repairing and upkeep of the strata property.

Other Contractors:

In instances where a body corporate does not engage a building manger often contractors are utilized to maintain common property such as gardeners and cleaners.

Volunteers:

Another would be Volunteers, who are generally considered to be persons engaged for work solely on behalf of the body corporate without promise of reward or remuneration. Their activities are dependent on the reasons they are engaged for.

For Volunteers, there are three main insurance considerations:

  1. Voluntary Workers (personal accident) Section (Injury to the volunteer)
  2. Public Liability (Injury to the volunteer)
  3. Public Liability (Volunteer injures someone or damages property)

In New South Wales, insurance policies do not contain exclusions for volunteers working on common property – in fact, they support voluntary work. It is recommended that prospective volunteers get written agreement from the Owners Corporation so that they can show documented evidence of agreement for volunteering to work on common property.

Committee:

There may also be a committee, who is a group of lot owners elected in an Annual General Meeting (AGM) to represent the interests of all the other strata owners in these meetings and carry out any duties under the law. The committee is charged with, among other things, controlling and maintaining the property.


Question from QLD: Is our contracted gardener covered by strata insurance?

Question Summary:

The gardened handyman does not carry any insurance. Is he covered under the Body Corporate insurance when he is engaging in work for our property?

Answer from Strata Insurance Solutions:

The strata insurance policy does extend to cover the body corporate for legal liability claims made for personal injury and property damage. While this can extend to cover liability that the body corporate is drawn into because of the gardener’s action, this does not cover any claims or legal actions made against the gardener.

In this scenario, the gardener would need to carry Public Liability Insurance.

Though there is nothing specifically requiring the gardener to have liability insurance in the Body Corporate and Community Management Act 1997 (BCCM Act), the Body Corporate should consider the following scenarios:

  1. If someone was seriously injured because of the gardener and was unable to pursue their insurance, they could be left in a problematic situation without the property ability to recover any financial losses from the gardener.
  2. Solicitors for an injured party will more actively pursue defendants who can pay a claim (i.e. insured defendants) versus those who cannot pay a claim. If there was an injury and the both the body corporate and the gardener were drawn into the claim and the gardener was not insured, a solicitor may pursue the body corporate more actively which in turn, may have an impact on the body corporate’s claims history.

For the reasons we have stated above, we recommend that the body corporate engages contractors who do carry the appropriate insurance to cover them.


Question from NSW: If my balcony doors and shutters were damaged by strong winds and it is dangerous for me to live in, what is a reasonable timeframe to wait for the insurance company to start carrying out repairs? What are my options if I seek a repairer myself?

Question Summary:

I live in a strata apartment in Sydney and my apartment is on the to floor (level 4) of the building. Due to strong winds, my balcony doors were damaged. The sliding balcony doors, which are very heavy, were pushed inwards off their track and are now jammed shut. The body corporate has not done anything to secure these doors and I get frightened as to what may happen each time there are strong winds.

I have contacted both the Strata Management and the Committee on various occasions. I fear that next time there are strong winds, the doors may be pushed in the whole way. All I have been told is that it is part of an insurance claim and that nothing can be done until it is finalized. I have also contacted the insurance company myself and they told me that the claim was approved, but I have not seen any action being undertaken so far.

I am considering putting in a complaint to NSW Fair Trading as it is over 6 months since the damage and I am frightened for my safety. I am also afraid of any further damage that may be caused. I do not mind waiting for the shutters to be put back up but I think that the sliding doors should have been fixed almost straight away. Is it reasonable to wait for an insurance company before any repairs are carried out?

Answer from Strata Insurance Solutions:

Most strata insurance policies do have conditions which require you to take all necessary steps to minimize and/or stop any further loss or damage from occurring and maintain your duty of care to others by taking reasonable actions to address safety concerns.

Unfortunately, the question of what is reasonable differs from individual to individual as it is subjective.

An Owners Corporation in New South Wales should take actions to properly address hazards that pose an undesirable risk to the safety of occupants.

If a safety hazard exists until an insurance company can indemnify costs for a claim, the party that has the responsibility to maintain the balcony doors should take action to address the safety hazard. In this scenario, as the insurance claim has taken so long to process, it is recommended to start conducting repairs prior to the insurance claim being finalized.

Generally, the act of repairing the damage will not affect or influence whether the insurer accepts the claim. However, if during their assessment the insurer deems that the damage is not covered by insurance, the party who has the responsibility to maintain will be responsible for costs associated with the repairs.

In the case that you choose to repair damages prior to the claim being settled, we recommend that you ask the repairer to document their view on the cause of the damage.

If the Owners Corporation are responsible for the balcony doors, note what Section 106 (1) of the Strata Schemes Management Act 2015 states:

An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.


Question from VIC: A plumber was repairing a leak in the lot above me and during the process, they have cut a hole in the ceiling our apartment. Who is responsible for the repairs to my ceiling?

Question Summary:

In the unit above me, there was a water leak due to their internal washbasin drain pipe leaking. The lot owner engaged in a plumber to fix the leak. The plumber came my apartment (the unit below) and created a hole in our ceiling during the repair.

The hole has not been repaired and as a result, the bathroom ceiling now has cracks, the light fitting is coming off, and there is rot and mould. I fear that any prolonging may lead to my ceiling falling through.

Who is responsible for fixing the damage caused by the leak? What legislation can be applicable to repairs in the apartment? The lot owner in the unit above has asked us to bear some of the costs of the repair and I am not sure what to do.

Answer from Strata Insurance Solutions:

The first point to determine is whether an insurance claim can be considered under the strata insurance policy for the water damage component.

If successful, this may help resolve some of the expenses without either lot owner covering the costs. A precedent case, Paisley v Owners Corporation PS52240, suggests that the owner of the property where the leak originated (i.e. the unit above) may be liable for the excess.

For any items or contents not covered by insurance, the question of legal responsibility is best suited to be answered by a legal or strata management professional. Do note that Section 129 of the Owners Corporation Act outlines a lot owner’s maintenance obligations and this particular scenario may be considered a break of that section of the Act.

If the lot owner of the unit above has contents insurance, the lot owner with the damage (i.e. in the unit below) may submit a letter of demand to the lot owner of the unit above. They can then refer this to their contents insurer for consideration of a claim made under the public or legal liability section of their contents insurance policy. The contents insurer will then consider if the lot owner (of the unit above) is responsible for damage. If so, they will make a payment to the lot owner with the damage (i.e. in the unit below) under that section of the policy.

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Tyrone

Tyrone Shandiman
Strata Insurance Solutions
LINK, Level 1, 57 Berwick St,
Fortitude Valley QLD 4006
Ph: 1300 554 165
E: tshandiman@iaa.net.au

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

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